Savannah Law Review VOLUME 2 │ NUMBER 1 Slavery, Property, and Marshall in the Positivist Legal Tradition Marc L. Roark* In 1819, a ship called the Columbia departed from Baltimore Harbor with a crew from the United States and flying under Venezuelan colors.1 Shortly after leaving Baltimore, the crew changed the ship’s colors to the Republic of Artega (later known as the Oriental Republic) and changed the ship’s name to the Arraganta.2 The crew then took into its possession enslaved humans from * Associate Professor of Law, Savannah Law School. For their wonderful contribution and engagement in our Colloquium, [Re]Integrating Spaces, I would like to thank: Al Brophy, Anthony Baker, Stephen Clowney, Lia Epperson, Liz Glazer, Angela Harris, Jamila Jefferson-Jones, Adam Kirk, Alberto Lopez, Andrea McArdle, Kali Murray, Connie Pinkerton, Marc Poirier, Amanda Reid, Caprice Roberts, Jeffrey Schmitt, and Andy Wright. I would also like to thank Morgan Cutright for her diligence in bringing this piece to a close. 1 John T. Noonan Jr., The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams 26-27 (1990). The ship, captained by Admiral Louis Brion, a Venezuelan revolutionary, arrived in Baltimore Harbor carrying only two other sailors. Id. at 27. Jose Artigas, the leader of Uruguay’s Oriental Revolution, sent blank sailor commissions to Admiral Brion with which he recruited Baltimore’s entrepreneurs wishing to engage in the slave trade. Id. Shortly thereafter, approximately thirty sailors swore before a Justice of the Peace that they were not American citizens, after which the Columbia set sail. Id. 2 The Antelope, 23 U.S. (10 Wheat.) 66 (1825). (Chief Justice John Marshall described the ship as flying under the colors of the “Oriental Republic”). Noonan explains that the purpose of the voyage was to “make war on the Ships of Spain and Portugal” under signed commissions of “José Artitagas, Chief of the Easterners and Protector of the Free Peoples the Eastern Republic.” Noonan, supra note 1, at 26. 45 Savannah Law Review [Vol. 2:1, 2015] several ships flying under different countries’ colors.3 They took possession of slaves from a U.S. vessel called the Exchange; they attacked two unnamed Portuguese ships along the African Coast and took enslaved humans as their bounty;4 and, finally, they captured a Spanish ship, the Antelope, also carrying slaves.5 The two ships, the Arraganta and the Antelope, then set sail for Brazil.6 Along the way, the Arraganta wrecked, and the crew and remaining slaves were moved to the Antelope to continue their journey to a new destination—Florida.7 On June 29, 1820, the USS Dallas, a revenue cutter, seized the Antelope under suspicion of engaging in the transatlantic slave trade and escorted her to the port at St. Mary’s Island off the east coast of Florida.8 She was later removed to the District of Savannah, Georgia, where the crew and human cargo awaited disposition—a process that would take nearly seven years before some of the Africans on board were returned to the African Continent. Chief Justice John Marshall, in a series of United States Supreme Court opinions, considered whether the United States should respect the property claims by unknown masters (both foreign and domestic).9 While the United States was notoriously entwined in a society and economy that depended heavily on human chattel slavery, the Slave Trade Prohibition Act of March 2, 1807, prohibited actions that brought these particular Africans to the Western 3 See Noonan, supra note 1, at 26. Amongst other exploits, the ship’s crew boarded an American ship, chased an English brig, attacked a Spanish ship, fired on Portuguese forts, and boarded another empty American vessel. Id. at 27. 4 Again, Noonan reports that the crew was recruited “on the basis of shares in prizes to be taken,” and, for some, the prospect of an “inexpensive entry into the slave market was appealing.” Id. at 27. 5 During the course of its voyage, the ship’s crew took possession of 280 Africans onboard American, Spanish, and Portuguese vessels. Id. at 28-30. Notably, Noonan suggests that only twenty-five of these Africans were apprehended aboard an American vessel. Id. at 28. 6 While en route, the crew unsuccessfully attempted to sell the slave cargo to Dutch traders for $80,000. The Dutch counter-offered $50,000, which was rejected, and the two ships continued on to St. Bartholomew. Id. at 30. 7 Id. Florida, having been ceded by Spain to the United States but remaining in Spanish hands, seemed to present a reasonable passage into the United States market for slave cargo. As she made her way through a passage in the Caribbean known as the “Hole-in-the-Wall,” the Antelope set her sights on the Eastern Seaboard of Florida. Once off the shore of St. Augustine, Florida, she raised an American flag and waited for a signal from shore. Id. 8 Id. at 31-32; see also The Antelope, 23 U.S. (10 Wheat.) at 68 (summarizing the facts on appeal surrounding the seizure and disposition of the African “cargo”). 9 Three cases were decided relating to the disposition of the Africans aboard the ship Antelope. All three cases are titled The Antelope. The first case, 23 U.S. (10 Wheat.) 66 (1825), was the longest opinion of the three and dealt most directly with questions of property and comity. The second case, 24 U.S. (11 Wheat.) 413 (1825), was an order mandating that the Spanish claimant provide proof before the Africans could be delivered. The third case, 25 U.S. (12 Wheat.) 546 (1826), considered whether the Africans could be detained by the Marshal of the District of Savannah, Georgia, for failure of payment for their upkeep by the U.S. Government. 46 Slavery, Property, and Marshall in the Positivist Legal Tradition Hemisphere.10 Marshall’s opinion confronts the legal tension present when one sovereign entity endorses an action deemed morally prohibitive by another. In this case, the Court, as decisionmaker in the dispute, found itself validating the existence of an institution that could find no validation under U.S. law. This occurred despite the moral objections of Marshall or the rhetorical conflict that U.S. narratives of liberty, equality, and justice presented towards the problem. I want to elaborate on this difficulty of defining moral problems by reference to their tangible impacts on people. Property is an apt subject for doing so, and slavery even more so. In property, we lay claims to things that supposedly are endorsed by our society and its laws.11 Yet, moral claims arise despite the legal validation of the property claim. Should a company be entitled to move its operations elsewhere in order to reduce its costs even though this act imposes a great cost on its employees?12 Can companies engage in pollution because its product is needed by society, or should there be greater constraints on production?13 These questions are often framed in the context of property through the lens of the owner, rather than considered from a broader perspective. As Joseph Singer has suggested in other contexts, starting from the question of ownership is often the wrong question because it frames the conversation as one solely pitting individual rights against social interests.14 Elaborating further on this question of morality in property, one must start from some place different. Chief Justice John Marshall approached the basic problem of how a property regime (slavery) responds to a moral shift.15 The United States, it has been said, was founded on slavery.16 The slavery institution 10 Act Prohibiting Importation of Slaves, ch. 22, 2 Stat. 426 (1807) (current version at 18 U.S.C. § 1590 (2008)) (“An Act to prohibit the importation of Slaves into any port or place within the jurisdiction of the United States . .”). Notably, the Act has been examined in a number of contexts, including: (1) as a stage of the overall abolition movement, see Lorenzo Dow Turner, Conclusion, 14 J. Negro Hist. 489 (1929); (2) as a movement toward securing a more palatable and morally acceptable form of slavery, see Peter Kolchin, American Slavery: 1619-1877 (Eric Foner ed., 2003); and (3) as a moment of international moral cooperation, see J.R. Kerr-Ritchie, Reflections on the Bicentennial of the Abolition of the British Slave Trade, 93 J. Afr. Am. Hist. 532 (2008). 11 See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972). 12 See Joseph William Singer, The Reliance Interest in Property, 40 Stan. L. Rev. 611 (1988) (noting that the imbalance of power in these situations is not easily remedied without requiring companies to consider the externalities involved in these scenarios, and that such arrangements “are indifferent to the rights and needs of third parties” and negatively affect society as a whole). 13 Doug Rendleman, Rejecting Property Rules—Liability Rules for Boomer’s Nuisance Remedy: The Last Tour You Need of Calabresi and Melamed’s Cathedral, in Remedies and Property 43 (Russell Weaver & François Lichère eds., 2013) (Rendleman uses the example of particulate pollution cases to illustrate and analyze human decisionmaking and the law), available at http://works.bepress.com/doug_rendleman/67. 14 See Singer, supra note 12. 15 See, e.g., The Antelope, 23 U.S. (10 Wheat) 66 (1825). 16 See, e.g., Edward E. Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (2014) (arguing that American commerce derived from the human chattel, slave trade economy).